Tenth Circuit Holds that a Six-Month Leave Policy is a Reasonable Accommodation under the Rehabilitation Act

The Court of Appeals for the Tenth Circuit recently held that a fixed, six-month leave policy is a reasonable accommodation that need not be extended to comply with the Rehabilitation Act. Hwang v. Kansas State University, 2014 WL 2212071 (May 29, 2014). In so doing, the Court refused to defer to the EEOC’s Enforcement Guidance: Reasonable Accommodations and Undue Hardships Under the Americans with Disabilities Act (2002), which states that, “[i]f an employee needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions for his/her position, or (2) granting additional leave would cause an undue hardship.”1

Kansas State University hired Ms. Hwang as an assistant professor to teach classes over three academic terms (fall, spring and summer). Before the fall term began, Hwang learned she had cancer and needed treatment. The University approved a six-month paid leave of absence. Before the spring term began, however, Hwang’s doctor advised her that she would need more time off, so she sought an extension of leave through the end of the spring semester. The University refused, explaining that it had an inflexible policy allowing no more than six months of sick leave.

Hwang alleged that the University effectively terminated her employment and brought suit alleging violations of the Rehabilitation Act. The district court dismissed Hwang’s complaint, and the Court of Appeals for the Tenth Circuit affirmed this dismissal.

The Court of Appeals held that a six-month leave of absence satisfied the University’s obligation to provide a reasonable accommodation. The court reasoned that “it’s difficult to conceive how an employee’s absence for six months – an absence in which she could not work from home, part-time, or in any way in any place – could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

The court also rejected Hwang’s argument, based on the EEOC’s Enforcement Guidance, that an employer must always consider extending an otherwise inflexible leave policy unless the employer can show that there is another effective accommodation or granting the additional leave would cause an undue hardship. The court reasoned that an employer need consider the foregoing conditions only after it is clear that modifying the leave policy is a reasonable accommodation needed to ensure that the employee can perform the job. However, because the court concluded that a six-month leave policy was a reasonable accommodation, there was no need to reach the question of whether there was a need to modify it.

Given this decision by the Court of Appeals for the Tenth Circuit, employers with inflexible six-month sick leave policies may feel reassured because this court refused to hold that such policies are inherently discriminatory. However, the EEOC remains steadfast in its reliance on the standard set forth in its Enforcement Guidance. So, this issue remains a hotly debated topic (under both the Rehabilitation Act and the Americans with Disabilities Act) that courts in other circuits may decide differently. To avoid becoming embroiled in litigation over this issue, employers with inflexible six-month or longer leave policies may still want to conduct an individualized evaluation of whether extending the available leave for a short period of time would be a reasonable accommodation on a case-by-case basis. Indeed, the Court of the Appeals for the First Circuit cautions against applying a per se rule in determining if a request for extending available leave is a reasonable accommodation. Instead, the First Circuit states that employers should conduct an individual factual assessment to determine if an extension of available leave is a reasonable accommodation, as “these are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes.” Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (court held that extending a leave beyond the company’s one-year policy could be a reasonable accommodation).

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1 The Rehabilitation Act and the Americans with Disabilities Act provide similar obligations regarding reasonable accommodations for disabled employees.